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Highway Traffic Act of Ontario, Regulations , section: 287/08

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Penalties/Suspension on Conviction, Prohibition, Reduction in Post-conviction Suspension with Interlock

Memo from Stephen R. Biss, Barrister & Solicitor, 1-877-273-3322

For first offenders, the Criminal Code of Canada provides for a minimum driving prohibition of one year and the Highway Traffic Act provides for a minimum one year concurrent suspension. There is an exception for THOSE PEOPLE WILLING TO VOLUNTARILY ACQUIRE A CRIMINAL CONVICTION by a "Stream A" GUILTY PLEA. However there is another exception for THOSE PEOPLE WHO WANT TO AVOID A CRIMINAL CONVICTION by a "Stream B" NOT GUILTY PLEA. Ontario Bill 203, Regulation 287/08, the Criminal Code, and a new set of Rules create "Stream A" and "Stream B" exceptions to that minimum one year prohibition/suspension. It is therefore absolutely essential that you consult face to face with a lawyer BEFORE YOU PLEAD GUILTY or defend yourself. If you have a matter pending before the Court you need to consult with a DUI lawyer forthwith. A DUI lawyer can review your disclosure and provide you with options. The "Stream A" option makes the person eligible for (but there is no guarantee of) 3 months absolute prohibition followed by 9 months interlock for all members of the family driving the car. The "Stream B" option makes the person eligible for (but there is no guarantee of) 6 months absolute prohibition followed by 12 months interlock for all members of the family driving the car. If on a "Stream B" NOT GUILTY PLEA you are acquitted there will be no further suspension beyond the initial 90 days, NO CONVICTION, and NO INTERLOCK.

Highway Traffic Act

ONTARIO REGULATION 287/08

CONDUCT REVIEW PROGRAMS O. Reg. 163/10 filed May 14, 2010.

PART I

REMEDIAL MEASURES CONDUCT REVIEW PROGRAM FOR DRIVERS SUSPENDED FOR CONDUCT RELATED TO IMPAIRED DRIVING

Features of remedial measures conduct review program

1. (1) A remedial measures conduct review program for drivers suspended for conduct related to impaired driving consists of a preliminary assessment of the extent to which a person is affected by or suffers from substance abuse and, based on the results of the preliminary assessment, appropriate remedial education or treatment programs. O. Reg. 287/08, s. 1 (1); O. Reg. 405/08, s. 3.

(2) The preliminary assessment may utilize assessment tools to determine the appropriate remedial education or treatment program or programs for the participant, including any tools, tests, scales or inventories from, or suitable for use in, the field of substance abuse assessment. O. Reg. 287/08, s. 1 (2).

(3) A preliminary assessment and remedial programs must be conducted or provided by a person authorized or required by the Minister to do so. O. Reg. 287/08, s. 1 (3).

Criteria to participate in program

2. The following persons may be required to participate in a remedial measures conduct review program under this Regulation:

1. A person whose driver’s licence has been suspended under,

i. clause 41 (1) (b.1) of the Act,

ii. clause 41 (1) (c) of the Act,

iii. clause 41 (1) (d) of the Act,

iv. clause 41 (1) (e) of the Act, or

v. any other clause of subsection 41 (1) of the Act, if the person’s driver’s licence was previously suspended under any of clauses 41 (1) (b.1), (c), (d) or (e) of the Act.

2. A person whose driver’s licence has been suspended under section 48 of the Act in respect of a second or subsequent suspension under that section. O. Reg. 287/08, s. 2; O. Reg. 405/08, s. 4. Attendance, participation and conduct standards

3. (1) A person who, as part of a remedial measures conduct review program under this Regulation, conducts a preliminary assessment or conducts or provides a remedial education or treatment program shall notify each participant of the attendance, participation and conduct standards for the assessment or remedial program before beginning the assessment or remedial program, as the case may be. O. Reg. 287/08, s. 3 (1).

(2) Notification under subsection (1) may be provided to each participant individually, or may be made on any written or electronic material that is provided to participants or that participants are required to read. O. Reg. 287/08, s. 3 (2).

(2.1) Participants who receive written or electronic material under this section are required to read it. O. Reg. 405/08, s. 5.

(3) A participant will be required to leave the assessment or remedial program if his or her attendance, participation or conduct does not meet the standards for the assessment or remedial program, as the case may be. O. Reg. 287/08, s. 3 (3).

Successful completion of program

4. A participant has successfully completed a remedial measures conduct review program under this Regulation if,

(a) the person who conducted the preliminary assessment reports to the Registrar that the participant successfully completed the assessment; and

(b) for each remedial education or treatment program the participant was required to take, the person who conducted or provided the program reports to the Registrar that the participant successfully completed such remedial program. O. Reg. 287/08, s. 4.

Failure to complete program

5. (1) A person who is required to leave a preliminary assessment or remedial program as described in section 3 or who otherwise fails to successfully complete a remedial measures conduct review program under this Regulation is required to retake the entire remedial measures conduct review program, beginning at the preliminary assessment, regardless of how much of the program he or she previously participated in or successfully completed. O. Reg. 287/08, s. 5.

(2) The driver’s licence of a person described in paragraph 2 of section 2 who is required by the Registrar to participate in a remedial measures conduct review program shall be suspended under section 57 of the Act if the person fails to successfully complete the program within,

(a) 120 days from the date the person’s driver’s licence is suspended, in the case of a person whose driver’s licence was suspended under section 48 of the Act for a second time; or

(b) 180 days from the date the person’s driver’s licence is suspended, in the case of a person whose driver’s licence was suspended under section 48 of the Act for a third or subsequent time. O. Reg. 405/08, s. 6.

(3) The suspension under subsection (2) continues until the Registrar is satisfied that the person has successfully completed the program. O. Reg. 405/08, s. 6.

Public list of providers

6. The Ministry shall make available to the public a list of the persons or classes of persons authorized or required by the Minister to conduct preliminary assessments and to conduct or provide remedial programs as part of a remedial measures conduct review program under this Regulation. O. Reg. 287/08, s. 6.

Equivalent program outside Ontario

7. Despite section 1, the Registrar may permit a person who resides in another province or territory of Canada or in a state of the United States of America and who is required to complete a remedial measures conduct review program under this Regulation to complete instead a program provided in his or her province, territory or state that the Registrar considers equivalent to a remedial measures conduct review program under this Regulation. O. Reg. 287/08, s. 7.

Exemption

7.1 Despite section 1 and clause 4 (a), a person who is not required by the Registrar to complete a preliminary assessment is exempt from the requirement for a preliminary assessment. O. Reg. 405/08, s. 7.

Programs may vary across province

8. A remedial measures conduct review program under this Regulation, or any feature of such program, may differ in its content, duration and method of delivery in different parts of Ontario. O. Reg. 287/08, s. 8.

PART II

IGNITION INTERLOCK CONDUCT REVIEW PROGRAM

GENERAL

Definitions

9. In this Part, “approval sticker” means a sticker in the form approved by the Minister for the purposes of this Part;

“authorized person” means a person authorized by the Minister to install, inspect and maintain ignition interlock devices for the purposes of this Part. O. Reg. 405/08, s. 8.

Ignition interlock conduct review program

10. An ignition interlock conduct review program is hereby established. O. Reg. 405/08, s. 8.

Licence subject to condition

11. (1) The driver’s licence of a person required to participate in an ignition interlock conduct review program under this Part is subject to the condition that he or she is prohibited from driving any motor vehicle that is not equipped with an ignition interlock device. O. Reg. 405/08, s. 8.

(2) The ignition interlock device referred to in subsection (1) shall be installed by an authorized person pursuant to a request made under section 16 and shall bear an approval sticker. O. Reg. 405/08, s. 8. Approved ignition interlock device

12. An ignition interlock device is an approved ignition interlock device for the purpose of section 41.2 of the Act if it was installed pursuant to a request made under section 16. O. Reg. 405/08, s. 8. Programs may vary across province

13. An ignition interlock conduct review program under this Part, or any feature of such a program, may differ in its content, duration and method of delivery in different parts of Ontario. O. Reg. 405/08, s. 8. Equivalent program outside Ontario

14. Despite anything in this Part, the Registrar may permit a person who resides in another province or territory of Canada or in a state of the United States of America and who is or could be required to complete an ignition interlock conduct review program under this Part to complete instead a program provided in his or her province, territory or state that the Registrar considers equivalent to an ignition interlock conduct review program under this Part. O.

Reg. 405/08, s. 8.

Performance standards

15. (1) A person who, as part of an ignition interlock conduct review program under this Part, carries out the installation, inspection or maintenance of an ignition interlock device, shall notify each participant of the attendance and performance standards for the program before beginning the installation. O. Reg. 405/08, s. 8.

(2) Notification under subsection (1) may be provided to each participant individually, or may be provided on any written or electronic material that is provided to participants. O. Reg. 405/08, s. 8.

(3) Participants who receive written or electronic material under this section are required to read it. O. Reg. 405/08, s. 8. Request for installation to be in writing

16. (1) A person whom the Registrar has required to participate in an ignition interlock conduct review program may request in writing an authorized person to install the device in the motor vehicle. O. Reg. 405/08, s. 8.

(2) The request shall include an acknowledgement by the participant that he or she,

(a) has received notification of the attendance and performance standards of the program;

(b) understands how to operate the ignition interlock device properly; and

(c) understands that he or she is solely responsible for ensuring that the device is not tampered with. O. Reg. 405/08, s. 8.

(3) An authorized person shall affix an approval sticker to an ignition interlock device if the request to install the device was made by a person required to participate in the program by the Registrar. O. Reg. 405/08, s. 8. Inspection and maintenance of device

17. (1) A participant shall ensure that the motor vehicle in which an ignition interlock device has been installed is brought to the authorized person that installed the device for inspection and maintenance as and when required by the attendance and performance standards, or at least once every 60 days. O. Reg. 405/08, s. 8.

(2) Despite subsection (1), if the ignition interlock device installed in a motor vehicle is designed to be inspected and maintained by removing a component from it, the participant shall, at least once every 60 days, ensure that,

(a) the component is removed, in accordance with the instructions of the authorized person who installed the device, and is delivered to that authorized person for inspection and maintenance; and

(b) the replacement component provided to the participant by the authorized person is installed in the device in accordance with the authorized person’s instructions. O. Reg. 405/08, s. 8.

Records

18. (1) Every authorized person shall maintain a record with respect to the installation, inspection and maintenance of an ignition interlock device carried out by the person. O. Reg. 405/08, s. 8.

(2) A record under subsection (1) shall include,

(a) the name, address and driver’s licence number of the person who requested the installation of the device;

(b) the make, model and vehicle identification number of the motor vehicle in which it was installed; and

(c) the results of any inspection of the device, including any information obtained from the device itself. O. Reg. 405/08, s. 8.

(3) The authorized person shall, upon request, submit the records maintained under this section to the Registrar. O. Reg. 405/08, s. 8. Ignition interlock providers publicly listed

19. The Ministry shall make publicly available a list of the persons or classes of persons authorized by the Minister to provide an ignition interlock device under this Part. O. Reg. 405/08, s. 8.

IGNITION INTERLOCK LICENCE CONDITION IMPOSED

Required participation in program

20. A person whose driver’s licence has been suspended under section 48 of the Act may be required, if the suspension is the person’s third or subsequent suspension under that section, to participate in an ignition interlock conduct review program under this section. O. Reg. 405/08, s. 8. Length of participation in program

21. (1) A person who is required to participate in an ignition interlock conduct review program under section 20 shall participate in the program for six months. O. Reg. 405/08, s. 8.

(2) The six-month period referred to in subsection (1) may be extended by six months from the date the Registrar is satisfied that,

(a) the ignition interlock device has been tampered with;

(b) the participant has failed to comply with section 17; or

(c) the participant has failed to comply with the ignition interlock condition referred to in section 11. O. Reg. 405/08, s. 8.

(3) If more than one period of extension applies to a person, the person is required to participate in the program until the end of the period of extension imposed most recently by the Registrar. O. Reg. 405/08, s. 8.

(4) The period of required participation, including any extension, under this section runs concurrently with the period of time, if any, during which an ignition interlock condition is imposed on a person’s driver’s licence where the driver’s licence has been reinstated pursuant to subsection 41.1 (1) of the Act and the person has been convicted of an offence under section 253, 254 or 255 of the Criminal Code (Canada). O. Reg. 405/08, s. 8.

(5) A person to whom subsection (4) applies is not eligible to apply to remove the ignition interlock condition under subsection 41.2 (2) or (6) of the Act until the person meets the requirements for successful completion of the ignition interlock conduct review program under section 22. O. Reg. 405/08, s. 8.

(6) The period of required participation, including any extension, continues until the requirements for successful completion of the program are met. O. Reg. 405/08, s. 8.

Successful completion of program

22. A participant in an ignition interlock conduct review program under section 20 completes it successfully if,

(a) the participant has successfully completed or successfully completes any examinations under clause 15 (1) (e) of Ontario Regulation 340/94 (Drivers’ Licences) made under the Act that he or she is required, or may be required, to complete pursuant to subsection 32 (5) of the Act;

(b) the Registrar is satisfied that the person has complied with the ignition interlock condition described in section 11; and

(c) the participant successfully completes the period of required participation, including any extension. O. Reg. 405/08, s. 8.

Comments : Highlighting in Bold has been added to draw your attention to some of the costs and obligations that may be imposed on you and your family if you decide to participate in the Stream A or Stream B programme.

The following is a modification of a memo taken from the Ontario Government regulations registry site http://www.ontariocanada.com/registry/view.do?postingId=3082. Some of the "Features" described by the Government in the original memo will involve substantial expense and obligation to participants and members of their families. This modified version of a portion of the memo highlights in bold some of the obligations and expenses incurred by participants. Please note that there are significant expenses on each vehicle related to fee for the assessment, fee for licence re-instatements, deposit on the interlock, insurance on the interlock, installation of the interlock, monthly fee for the interlock, download fee every 60 days, and removal of the interlock :

Bill 203: Reduced Suspension with Ignition Interlock Conduct Review Program – Additional Information

Background:

Currently, the Ontario Highway Traffic Act (HTA) requires drivers convicted for certain offences under the Criminal Code of Canada, including impaired driving offences, to serve licence suspensions as follows:

• 1 year for the first offence;

• 3 years for a second offence;

• Lifetime, reducible to 10 years, for a third offence;

• Lifetime for a fourth offence (not eligible for reinstatement)

Drivers convicted of impaired driving offences under the Criminal Code (sections 253, 254, and 255) must complete a remedial measures program before being eligible for reinstatement with an ignition interlock licence condition for a prescribed time period (minimum of 1 year for a first offence; minimum of 3 years for a second offence; and, if reinstated, up to lifetime for a third offence).

Eligible drivers can have their licence reinstated with an ignition interlock condition without installing the device on their vehicles. However, they must not operate any vehicle without an ignition interlock device until the prescribed period is over.

Studies show that ignition interlock devices reduce recidivism. The conduct review program aims to increase the rate of interlock installation and allows the Ministry to monitor the driving behaviour of offenders who have a history of drinking and driving.

Research also shows that up to 75 per cent of suspended drivers continue to drive despite the disqualification. By offering early licence reinstatement in exchange for the mandatory installation of an ignition interlock device, convicted impaired drivers are given the opportunity to drive legally, under the restrictions of the program. This will help prevent driving while suspended and driving while impaired.

Proposed Regulation:

1. Program Eligibility

To be eligible for the proposed conduct review program, driver’s must:

Be convicted (after program implementation) for a first-time of alcohol-impaired driving under Criminal Code sections 253, 254 or subsection 255(1).

o Drivers with prior Criminal Code driving convictions (determined in accordance with sections 41 and 42 of the HTA) are not eligible for the program.

o Drivers convicted in circumstances involving impairment by drugs or a combination of drugs and alcohol are not eligible for the program.

• Not be subject to a court order under Criminal Code subsection 259 (1.1) denying authorization to drive a motor vehicle equipped with an alcohol ignition interlock device during the prohibition period.

Complete the assessment component of the required remedial measures program.

Establish proof of lease agreement for an ignition interlock device with the approved ignition interlock service provider.

• Not have been subject to an ignition interlock condition on the date of offence.

• Not have previously been granted a reduction (to 10 years) of a lifetime suspension.

2. Early Reinstatement with Ignition Interlock

Drivers who meet the eligibility requirements and successfully enter the proposed conduct review program will have their licence suspension and ignition interlock requirements adjusted as outlined in the table below:

(Stream “A”**)

(Stream “B”***)

HTA suspension

Ignition Interlock Installation Period

HTA suspension

 

Ignition Interlock Installation Period

 

Minimum of 3 months*

Minimum of 9 months

Minimum of 6 months

Minimum of 12 months

* The Criminal Code provides for a minimum initial period (the absolute minimum prohibition period) – which the court may increase – during which the offender may not have access to the alcohol ignition interlock device program. This is a three-month period in the case of a first offence.

** To be eligible for Stream “A”, in addition to meeting all of the program eligibility requirements outlined above (see 1. Program Eligibility), drivers must:

Plead guilty, be sentenced and subject to a driving prohibition order within 90 days of the offence date.

Complete the assessment component of the required remedial measures program prior to the expiry of the absolute minimum prohibition period.

Establish proof of lease agreement for interlock prior to the expiry of the absolute minimum prohibition period.

Transitional Provision: Drivers who plead guilty, are sentenced and subject to a driving prohibition order within 90 days of program implementation, provided they meet all of the eligibility requirements above (see 1. Program Eligibility), will be permitted to participate and eligible for Stream “A”, even if their offence date is more than 90 days from their sentence date.

*** Drivers that are ineligible for Stream “A” but otherwise meet all of the above program eligibility requirements (see 1. Program Eligibility) are eligible for Stream “B”.

3. Program Features

Violations incurred during the ignition interlock installation period will result in removal from the program and re-suspension. Violations include:

• Convictions under HTA subsections 41.2 (11) and (13) related to tampering and driving a vehicle that is not equipped with an approved ignition interlock device;

Tampering with the device as reported by then approved ignition interlock service provider;

Missed appointment with the approved ignition interlock service provider (every 60 days, participants are required to attend the ignition interlock service provider to download interlock data and to calibrate the device);

“Warn Range” suspensions under HTA s. 48;

Administrative Driver’s Licence Suspensions (ADLS) under HTA s. 48.3;

• A conviction for violating the novice driver zero blood alcohol concentration (BAC) requirement; and

• When implemented, a conviction for violating the young driver (under age 22) zero BAC licence condition.

The program is to be performance-based, i.e., all ignition interlock program activity is to be recorded and monitored. Interlock performance failures that occur in the last 3 months of a driver’s ignition interlock installation period extend the installation by 3 months from the current installation period expiry date. Performance failures include:

• Blowing above the BAC fail point of 0.02; and

• Missed random rolling re-test.

Failure to install an approved ignition interlock device within 30 days of licence reinstatement or de-installation of the device at any time during the installation period results in removal from the program and the driver is re-suspended.

Program participants that are subsequently convicted of another Criminal Code driving offence are to be removed from the Program and re-suspended.

4. Program Exit

Drivers can exit the program and receive an unconditional licence once they reach the expiry of their ignition interlock installation period if:

• The driver has satisfactorily completed all components of the required remedial measures program;

The final interlock data download has been received from the approved ignition interlock service provider and did not indicate any violations or performance failures – a driver’s last interlock data download will not be accepted by the approved service provider if the driver is suspended at the time of the download.

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